As shown in Part 1, a majority of Canadians surveyed do not have a great deal of confidence in the police, or the justice system. And as stated in Part 1, the purpose of this series of essays is to attempt to identify the reasons for the poor performance of police, courts, and prisons. The analysis presented strongly suggests this poor performance, and the dissatisfaction of Canadians, is best understood by focusing on the contrasting incentives of two different systems of law – Authoritarian Law versus Customary Law.

Under authoritarian law, the majority of crimes committed against persons and property which are reported to the police, are not solved (Part 8). This explains why most crimes of this nature are not reported to the police. The few crimes which are solved often result in one or more of the following: (a) plea bargained convictions, (b) light sentences, (c) incarceration in violent, drug-infested prisons, (d) ill-advised early releases of dangerous offenders. These authoritarian policies encourage recidivism. Victims do not receive restitution from offenders and are marginalized by the system (Part 10). Authoritarian law forces taxpayers, including victims, to support police, court, and prison bureaucracies. This coerced financial support tends to increase annually. Bureaucrats continue to collect their salaries despite a continuing record of poor performance in the eyes of their customers – the taxpayers. This entire state of affairs arises as a consequence of the perverse incentives embedded within our system of authoritarian law.

Bruce L. Benson is a Senior Fellow at the Independent Institute, the DeVoe Moore Distinguished Research Professor of Economics at Florida State University, and Contributing Editor of The Independent Review. In his book “The Enterprise of Law”, Benson wrote:

The common law system we have inherited was largely shaped, not by some desire to organize society in the “public interest,” but by the self-interested goals of kings, their bureaucrats, and powerful groups in England. . . .

The fact that government law has taken over as much as it has is not a reflection of the superior efficiency of representative government in making or enforcing law that facilitates interaction. It is, rather, a reflection of government’s general purpose of transferring wealth to those with political power.

The expressed aim of government officials in a representative democracy may not be the accumulation and centralization of power, but that is a necessary consequence of the process as it has evolved within the institutions developed by medieval kings. Whether the government producing law is a totalitarian king or a representative democracy, power is centralized and coercion is used to impose rules beneficial to some upon the rest of the population. Government is still a wealth transfer mechanism. [1]

With regard to police, court, and prison bureaucracies, the modusoperandi is a forced extraction of large sums of money (taxes) in return for various services, without being legally obliged to actually provide these services. Our analysis emphasizes that the inefficient provision of services is a predictable outcome of this system of law. Any system of authoritarian law does not, and by its nature cannot, embody sufficient incentives to prevent crime, solve crime, or reform criminals with any reasonable degree of efficacy.

In contrast, under customary law, law enforcement institutions did not seek to profit from crime, but rather to minimize it and resolve offenses as quickly as possible in favour of victims. Restitution and reciprocal law enforcement institutions created significant incentives for law enforcement, which deters law-breakers. Additionally, as the people themselves have made the golden-rule laws, they become highly incentivized to obey the laws – likely feeling obliged to respect rules based on basic morals. Thus, we should expect very low crime rates compared to systems of authoritarian law. We have seen compelling evidence of this in Parts 3, 5 and 7.

Most people working within the authoritarian system are decent people with good intentions, but that is irrelevant. The problem is with the incentives embedded within the system itself. Humans respond to incentives – always have, always will. When lawmaking and law enforcement is based on coercion, perverse incentives arise. This produces higher crime rates, lower crime resolution rates, lower accountability, and lower prosperity, as compared to a non-coercive system.

Customary law systems can produce highly advanced civilizations. In reference to medieval Iceland, Friedman noted “its literary output in relation to its size has been compared, with some justice, to that of Athens.”[2] In reference to medieval Ireland, the great economist, eminent historian, and political philosopher Murray Rothbard observed: “Preconquest Ireland was not in any sense a “primitive” society: it was a highly complex society that was, for centuries, the most advanced, most scholarly, and most civilized in all of Western Europe.”[3]

When human interaction is limited only by adherence to ‘golden rule’ laws, all individuals are free to participate in the division of labour, resulting in high levels of peace and prosperity. In contrast, when the state makes laws in opposition to the golden rule, the division of labour contracts, prosperity declines, and crime increases. This is because various individuals are competing, not in the marketplace, but for legislative favours in order to enhance their own prosperity at the expense of the majority of the population. A bit of critical thinking allows us to detect the resulting economic gulf between the two systems of law-making. This was covered in Part 12. As Frederic Bastiat wrote in 1850, “if everyone enjoyed the free exercise of his faculties and the free disposition of their fruits, social progress would be incessant, uninterrupted, inevitable.”[4]

Frederic Bastiat (1801 – 1850) was a French economist, author, and member of the French National Assembly. His essay The Law continues to be widely read today, and rightly so, as the message is timeless. Bastiat wrote:

Nature, or rather God, has bestowed upon every one of us the right to defend his person, his liberty, and his property, since these are the three constituent or preserving elements of life . . .

. . . Collective right, then, has its principle, its reason for existing, its lawfulness, in individual right; and the common force cannot rationally have any other end, or any other mission, than that of the isolated forces for which it is substituted. Thus, as the force of an individual cannot lawfully touch the person, the liberty, or the property of another individual – for the same reason, the common force cannot lawfully be used to destroy the person, the liberty, or the property of individuals or of classes.

For this perversion of force would be, in one case as in the other, in contradiction to our premises. For who will dare to say that force has been given to us, not to defend our rights, but to annihilate the equal rights of our brethren? And if this be not true of every individual force, acting independently, how can it be true of the collective force, which is only the organized union of isolated forces?

Nothing, therefore, can be more evident than this: The law is the organization of the natural right of lawful defense . . . [5]

Bastiat’s definition of law is consistent with the golden rule and the reciprocal law enforcement institutions of Customary Law. However, according to the Department of Justice, “Laws are rules made by government”. Here is what Bastiat says about rules made by government:

. . . When law and morality are in contradiction to each other, the citizen finds himself in the cruel alternative of either losing his moral sense, or of losing his respect for the law – two evils of equal magnitude, between which it would be difficult to choose.

It is so much in the nature of law to support justice that in the minds of the masses they are one and the same. There is in all of us a strong disposition to regard what is lawful as legitimate, so much so that many falsely derive all justice from law.

. . . Unhappily, law is by no means confined to its own sphere. . . . It has acted in direct opposition to its proper end . . . it has been employed in annihilating that justice which it ought to have established . . . it has placed the collective force in the service of those who wish to traffic, without risk and without scruple, in the persons, the liberty, and the property of others; it has converted plunder into a right, that it may protect it, and lawful defense into a crime, that it may punish it. . .

. . . When law and force keep a man within the bounds of justice, they impose nothing upon him but a mere negation. They only oblige him to abstain from doing harm. . . . But when the law, through the medium of its necessary agent – force – imposes a form of labor, a method or a subject of instruction, a creed, or a worship, it is no longer negative; it acts positively upon men. It substitutes the will of the legislator for their own will, the initiative of the legislator for their own initiative. . . . Try to imagine a form of labor imposed by force that is not a violation of liberty; a transmission of wealth imposed by force that is not a violation of property. If you cannot succeed in reconciling this, you are bound to conclude that the law cannot organize labor and industry without organizing injustice. . . .

. . . It is not true that the mission of the law is to regulate our consciences, our ideas, our will, our education, our sentiments, our works, our exchanges, our gifts, our enjoyments. Its mission is to prevent the rights of one from interfering with those of another, in any one of these things.[6]

Some say “surely we need authoritarian laws to control our education, organize our labour, and help the needy.” However, as we have seen, this is pure myth, as evidenced by the experience of our medieval ancestors from Iceland and Ireland. Furthermore, we must remember that the government cannot protect and provide. It must choose between the two. When the law is perverted in order to provide for some, it can only do so by taking from others, which means it fails to protect. I recommend the following books: Education – “Dumbing Us Down”, by John Taylor Gatto. Labour – How Capitalism Saved America, by Thomas J. DiLorenzo. Welfare – From Mutual Aid to the Welfare State, by David T. Beito. These books illustrate how the quest for education and prosperity is best achieved through our free, unfettered, voluntary interactions with each other. Our ancestors provide the evidence.

Bastiat warned us about the critics – those who say if we object to something being done by government, then surely we object to it being done at all. Does it follow, asks Bastiat:

that if we are free, we shall cease to act? Does it follow that if we do not receive an impulse from the law, we shall receive no impulse at all? Does it follow that if the law confines itself to securing to us the free exercise of our faculties, our faculties will be paralyzed? Does it follow, that if the law does not impose upon us forms of religion, modes of association, methods of education, rules for labor, directions for exchange, and plans for charity, we shall plunge headlong into atheism, isolation, ignorance, misery, and greed? Does it follow, that we shall no longer recognize the power and goodness of God; that we shall cease to associate together, to help each other, to love and assist our unfortunate brethren, to study the secrets of nature, and to aspire after perfection in our existence?[7]

Carroll Quigley (1910 – 1977) was professor of history at the Foreign Service School of Georgetown University, and previously taught at Princeton and Harvard. He has done research in the archives of France, Italy, and England, is the author of the widely praised Evolution of Civilizations, as well as a massive book of 1,311 pages, titled Tragedy and Hope, a History of the World in Our Time. In this book, Quigley wrote:

In the West, the Roman Empire (which continued in the East as the Byzantine Empire) disappeared in 476; and, although many efforts were made to revive it, there was clearly a period, about 900, when there was no empire, no state, and no public authority in the West. The state disappeared, yet society continued. So also, religious and economic life continued. This clearly showed that the state and society were not the same thing, that society was the basic entity . . [8]

This was a time when Customary Law prevailed in such places as England, Iceland, and Ireland (see Parts 2, 3, and 4). Quigley continues:

. . . This experience had revolutionary effects. It was discovered that man can live without a state; this became the basis of Western liberalism.[9] It was discovered that the state, if it exists, must serve men and that it is incorrect to believe that the purpose of men is to serve the state.[10]

Unfortunately, authoritarian law presumes that the purpose of people is to serve the state. More from Quigley:

It was discovered that economic life, religious life, law, and private property can all exist and function effectively without a state. . . . In Rome, in Byzantium, and in Russia, law was regarded as an enactment of a supreme power. In the West, when no supreme power existed, it was discovered that law still existed as the body of rules which govern social life. Thus law was found by observation in the West, not enacted by autocracy as in the East. This meant that authority was established by law and under the law in the West, while authority was established by power and above the law in the East.

The West felt that the rules of economic life were found and not enacted; that individuals had rights independent of, and even opposed to, public authority; that groups could exist, as the Church existed, by right and not by privilege, and without the need to have any charter of incorporation entitling them to exist as a group or act as a group; that groups or individuals could own property as a right and not as a privilege and that such property could not be taken by force but must be taken by established process of law. It was emphasized in the West that the way a thing was done was more important than what was done, while in the East what was done was far more significant than the way in which it was done.[11]

The way a thing is done is more important than what is done. The end does not justify the means. Do you agree? Bastiat would agree. I agree. This is the moral way of facilitating human interaction. It also produces the most peaceful, prosperous societies, but that is a bonus.

The way we produce security is more important than security. The way we define crime is more important than the definition of crime. The way we hold criminals accountable is more important than accountability.

If we choose the way of Authoritarian Law, we get low security, high crime rates, and low accountability.

If we choose the way of Customary Law, we get high security, low crime rates, and high accountability.

[8] Carroll Quigley Tragedy and Hope, A History of The World in Our Time (GSG & Associates, San Pedro, Ca.) (First published in 1966 by The Macmillan Company, New York, and Collier-Macmillan Limited, London) p 83

[9] Not to be confused with our understanding of modern day liberals or political Liberal Parties. Quigley is referring to Classical Liberalism – see Ludwig von Mises Liberalism (originally published in German under the title Liberalismus in 1927 by Gustav Fischer) (Ludwig von Mises Institute, 2010) p vi : “Classical liberalism stands for individual liberty, private property, free trade, and peace”

[10] Carroll Quigley Tragedy and Hope, A History of The World in Our Time (GSG & Associates, San Pedro, Ca.) (First published in 1966 by The Macmillan Company, New York, and Collier-Macmillan Limited, London) p 83